The Employment and Support Allowance Regulations 2008

183 Pages·2008·0.7 MB·English

S T A T U T O R Y I N S T R U M E N T S
2008 No. 794
SOCIAL SECURITY
The Employment and Support
Allowance Regulations 2008
Made - - - - - 25thMarch2008
LaidbeforeParliament 27thMarch2008
Comingintoforceinaccordancewithregulation1
£26.00
S T A T U T O R Y I N S T R U M E N T S
2008 No. 794
SOCIAL SECURITY
The Employment and Support Allowance Regulations 2008
Made - - - - 25th March 2008
Laid before Parliament 27th March 2008
Coming into force in accordance with regulation 1
CONTENTS
PART 1
GENERAL

1. Citation and commencement
2. Interpretation
3. Rounding of fractions

PART 2
THE ASSESSMENT PHASE

4. The end of the assessment phase
5. The assessment phase – previous claimants
6. The assessment phase – claimants appealing against a decision
7. Circumstances where the condition that the assessment phase has ended before
entitlement to the support component or the work-related activity component arises
does not apply

PART 3
CONDITIONS OF ENTITLEMENT – CONTRIBUTORY ALLOWANCE

8. Relaxation of the first contribution condition
9. Condition relating to youth – claimants aged 20 or over but under 25
10. Condition relating to youth – previous claimants
11. Condition relating to youth – residence or presence
12. Condition relating to youth – full-time education
13. Modification of the relevant benefit year

PART 4
CONDITIONS OF ENTITLEMENT – INCOME-RELATED ALLOWANCE

14. Meaning of education
15. Claimants to be treated as receiving education
16. Claimants not to be treated as receiving education
17. Courses of study
18. Circumstances in which the condition that the claimant is not receiving education
does not apply

PART 5
LIMITED CAPABILITY FOR WORK

19. Determination of limited capability for work
20. Certain claimants to be treated as having limited capability for work
21. Information required for determining capability for work
22. Failure to provide information in relation to limited capability for work
23. Claimant may be called for a medical examination to determine whether the
claimant has limited capability for work
24. Matters to be taken into account in determining good cause in relation to
regulations 22 or 23
25. Hospital in-patients
26. Claimants receiving certain regular treatment
27. Claimant to be treated as having limited capability for work throughout a day
28. Night workers
29. Exceptional circumstances
30. Conditions for treating a claimant as having limited capability for work until a
determination about limited capability for work has been made
31. Claimant who claims jobseeker’s allowance to be treated as not having limited
capability for work
32. Certain claimants to be treated as not having limited capability for work
33. Additional circumstances where claimants are to be treated as having limited
capability for work

PART 6
LIMITED CAPABILITY FOR WORK-RELATED ACTIVITY

34. Determination of limited capability for work-related activity
35. Certain claimants to be treated as having limited capability for work-related
activity
36. Information required for determining capability for work-related activity
37. Failure to provide information in relation to work-related activity
38. Claimant may be called for a medical examination to determine whether the
claimant has limited capability for work-related activity
39. Matters to be taken into account in determining good cause in relation to
regulations 37 or 38

PART 7
EFFECT OF WORK ON ENTITLEMENT TO AN EMPLOYMENT AND SUPPORT
ALLOWANCE

40. A claimant who works to be treated as not entitled to an employment and support
allowance
41. Meaning of “remunerative work” for the purposes of paragraph 6(1)(e) of Schedule
1 to the Act
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42. Meaning of “remunerative work” for the purposes of paragraph 6(1)(f) of Schedule
1 to the Act
43. Circumstances under which partners of claimants entitled to an income-related
allowance are not to be treated as engaged in remunerative work
44. Claimants who are treated as not entitled to any allowance at all by reason of
regulation 40(1) are to be treated as not having limited capability for work
45. Exempt work
46. Effect of work on entitlement to contributory allowance where claimant is
receiving certain regular treatment

PART 8
CONDITIONALITY
CHAPTER 1
Work-focused health-related assessment
47. Requirement to take part in a work-focused health-related assessment
48. Work-focused health-related assessment
49. Notification of assessment
50. Determination of the place of the work-focused health-related assessment
51. Taking part in a work-focused health-related assessment
52. Deferral of requirement to take part in a work-focused health-related assessment
53. Failure to take part in a work-focused health-related assessment

CHAPTER 2
Work-focused interviews
54. Requirement to take part in a work-focused interview
55. Work-focused interview
56. Notification of interview
57. Taking part in a work-focused interview
58. Action plan
59. Deferral of requirement to take part in a work-focused interview
60. Requirement to take part in a work-focused interview not to apply
61. Failure to take part in a work-focused interview
62. Contracting out certain functions relating to work-focused interviews

CHAPTER 3
Reduction of employment and support allowance
63. Reduction of employment and support allowance
64. Cessation of reduction

CHAPTER 4
Notification
65. Notification under this Part

CHAPTER 5
Modification of the Act in relation to claims to which section 5(1)(c) of the Administration Act applies
66. Modifications of the Act

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PART 9
AMOUNTS OF ALLOWANCE
CHAPTER 1
Prescribed amounts
67. Prescribed amounts
68. Polygamous marriages
69. Special cases
70. Special cases: supplemental – persons from abroad
71. Definition of non-dependant

CHAPTER 2
Deductions from the contributory allowance
72. Permanent health insurance
73. Councillor’s allowance
74. Deductions for pension payment and PPF payment
75. Payments treated as not being payments to which section 3 applies
76. Deductions for councillor’s allowance
77. Date from which payments are to be taken into account
78. Date from which a change in the rate of the payment takes effect
79. Calculation of payment made other than weekly

CHAPTER 3
Statutory payments
80. Effect of statutory maternity pay on a contributory allowance
81. Effect of statutory adoption pay on a contributory allowance
82. Effect of additional statutory paternity pay on a contributory allowance

PART 10
INCOME AND CAPITAL
CHAPTER 1
General
83. Calculation of income and capital of members of claimant’s family and of a
polygamous marriage
84. Income of participants in the self-employment route
85. Liable relative payments
86. Child support
87. Calculation of income and capital of students
88. Calculation of income which consists of earnings of participants in exempt work
89. Calculation of income where pension payments, PPF periodic payments or
councillor’s allowance payable

CHAPTER 2
Income
90. Calculation of income
91. Calculation of earnings derived from employed earner’s employment and income
other than earnings
92. Calculation of earnings of self-employed earners
93. Date on which income is treated as paid
94. Calculation of weekly amount of income

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CHAPTER 3
Employed earners
95. Earnings of employed earners
96. Calculation of net earnings of employed earners

CHAPTER 4
Self-employed earners
97. Earnings of self-employed earners
98. Calculation of net profit of self-employed earners
99. Deduction of tax and contributions for self-employed earners

CHAPTER 5
Participants in the self-employment route
100. Interpretation
101. Treatment of gross receipts of participants in the self-employment route
102. Calculation of income of participants in the self-employment route
103. Deduction in respect of tax for participants in the self-employment route

CHAPTER 6
Other income
104. Calculation of income other than earnings
105. Capital treated as income
106. Notional income – deprivation and income on application
107. Notional income – income due to be paid or income paid to or in respect of a third
party
108. Notional income – other income
109. Notional income – calculation and interpretation

CHAPTER 7
Capital
110. Capital limit
111. Calculation of capital
112. Income treated as capital
113. Calculation of capital in the United Kingdom
114. Calculation of capital outside the United Kingdom
115. Notional capital
116. Diminishing notional capital rule
117. Capital jointly held
118. Calculation of tariff income from capital

CHAPTER 8
Liable relatives
119. Interpretation
120. Treatment of liable relative payments
121. Disregard of payments treated as not relevant income
122. Period over which periodical payments are to be taken into account
123. Period over which payments other than periodical payments are to be taken into
account
124. Calculation of the weekly amount of a liable relative payment
125. Date on which a liable relative payment is to be treated as paid
126. Liable relative payments to be treated as capital
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CHAPTER 9
Child support
127. Treatment of child support maintenance
128. Calculation of the weekly amount of payments of child support maintenance
129. Date on which child support maintenance is to be treated as paid
130. Disregard of payments treated as not relevant income

CHAPTER 10
Students
131. Interpretation
132. Calculation of grant income
133. Calculation of covenant income where a contribution is assessed
134. Calculation of covenant income where no grant income or no contribution is
assessed
135. Relationships with amounts to be disregarded under Schedule 8
136. Other amounts to be disregarded
137. Treatment of student loans
138. Treatment of payments from access funds
139. Treatment of fee loans
140. Disregard of contribution
141. Further disregard of student’s income
142. Income treated as capital
143. Disregard of changes occurring during summer vacation

PART 11
SUPPLEMENTARY PROVISIONS
CHAPTER 1
Miscellaneous
144. Waiting days
145. Linking rules
146. Advance awards
147. Recovery orders

CHAPTER 2
Work or training beneficiaries
148. Work or training beneficiaries
149. Linking rules – limited capability for work
150. Linking rules – limited capability for work-related activity

CHAPTER 3
Temporary absence from Great Britain
151. Absence from Great Britain
152. Short absence
153. Absence to receive medical treatment
154. Absence in order to receive NHS treatment
155. Absence of member of family of member of Her Majesty’s forces

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CHAPTER 4
Membership of household
156. Circumstances in which a person is to be treated as being or not being a member of
the household

PART 12
DISQUALIFICATION

157. Disqualification for misconduct etc.
158. Meaning of “person in hardship”
159. Treating a claimant as not having limited capability for work
160. Exceptions from disqualification for imprisonment
161. Suspension of payment of a contributory allowance during imprisonment

PART 13
URGENT CASES

162. Urgent cases
163. Applicable amounts in urgent cases
164. Assessment of income and capital in urgent cases

PART 14
PERIODS OF LESS THAN A WEEK

165. Entitlement for less than a week – amount of an employment and support
allowance payable
166. Relevant week
167. Modification in the calculation of income
168. Reduction in certain cases
169. Payment of a contributory allowance for days of certain regular treatment

SCHEDULE 1 — HER MAJESTY’S FORCES
PART 1 — Prescribed establishments and organisations
PART 2 — Establishments and organisations of which Her Majesty’s forces
do not consist
SCHEDULE 2 — ASSESSMENT OF WHETHER A CLAIMANT HAS
LIMITED CAPABILITY FOR WORK
PART 1 — Physical disabilities
PART 2 — Mental, cognitive and intellectual function assessment
SCHEDULE 3 — ASSESSMENT OF WHETHER A CLAIMANT HAS
LIMITED CAPABILITY FOR WORK-RELATED ACTIVITY
SCHEDULE 4 — AMOUNTS
PART 1 — Prescribed amounts
PART 2 — Premiums
PART 3 — Weekly amount of premiums specified in Part 2
PART 4 — The components
SCHEDULE 5 — SPECIAL CASES
PART 1 — Amounts prescribed for the purposes of section 4(2) of the Act
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PART 2 — Amounts prescribed for the purposes of sections 2(1) and 4(2) of
the Act
SCHEDULE 6 — HOUSING COSTS
SCHEDULE 7 — SUMS TO BE DISREGARDED IN THE CALCULATION OF
EARNINGS
SCHEDULE 8 — SUMS TO BE DISREGARDED IN THE CALCULATION OF
INCOME OTHER THAN EARNINGS
SCHEDULE 9 — CAPITAL TO BE DISREGARDED
The Secretary of State for Work and Pensions, in exercise of the powers conferred by sections
2(1)(a) and (c), (4)(a) and (c), 3(1)(c), (2)(b) and (d) and (3)(a), 4(2)(a), (3), (6)(a) and (c), 5(2)
and (3), 8(1) to (3), (4)(a) and (b), (5) and (6), 9(1) to (3) and (4)(a) and (b), 11(1), (2)(a) to (g),
(3) to (5), (6)(a) and (7)(c), 12(1), (2)(a) to (h), (3) to (7), 14(1) and (2)(a) and (b), 16(2)(a) and
(4), 17, 18(1), (2) and (4), 20(2) to (7), 22(b), 23(1) and (3), 24(1)(c), (2)(b) and (3), 25(1) to (5)
and 26(2) of, and paragraphs 1(4), 3(2), 4(1)(a) and (c), (3) and (4) and 6(1)(b), (2) to (5)(d), (7)
and (8) of Schedule 1 to, and paragraphs 1 to 7, 8(1), 9, 10, 12 and 14 of Schedule 2 to, the
Welfare Reform Act 2007(e), section 5(1) of the Social Security Administration Act 1992(f) and
section 21(1)(a) of the Social Security Act 1998(g) makes the following Regulations, which are
made by virtue of, or consequential on, the provisions of the Welfare Reform Act 2007 and which
are made before the end of a period of 6 months beginning with the coming into force of those
provisions:
PART 1
GENERAL
Citation and commencement
1. These Regulations may be cited as the Employment and Support Allowance Regulations 2008
and shall come into force—
(a) subject to paragraphs (b) and (c), on 27th October 2008;
(b) in relation to regulation 128(6)(a) and paragraph 15(2) of Schedule 6, so far as it applies
to a maintenance calculation, in relation to a particular case, on the day on which
paragraph 11(20)(d) of Schedule 3 to the 2000 Act comes into force for the purposes of
that type of case;
(c) in relation to regulation 82 and paragraph 4 of Schedule 8, so far as it applies to
additional statutory paternity pay, on the day on which regulations made under or by
virtue of sections 171ZEA to 171ZEE of the Contributions and Benefits Act(h) come into
force.
Interpretation
2.—(1) In these Regulations—
“Abbeyfield Home” means an establishment run by the Abbeyfield Society including any
body corporate or incorporate which is affiliated to that Society;

(a) Section 3(3) is cited for the power to prescribe a payment under paragraph (b) of the definition of “pension payment”.
(b) Section 22 is cited insofar as it relates to paragraphs 1 to 3, 6, 7, 8(1), 9 and 10 of Schedule 2.
(c) Section 24(1) is cited for the definition of “employment” and “employed”, “period of limited capability for work”,
“prescribed”, “regulations” and “week”.
(d) Paragraph 6(5) of Schedule 1 is cited for the definition of “couple”, “education” and “remunerative work”.
(e) 2007 c. 5.
(f) 1992 c. 5.
(g) 1998 c. 14.
(h) 1992 c. 4. Sections 171ZEA to 171ZEE were inserted by sections 6 to 10 of the Work and Families Act 2006 (c. 18).
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“the Act” means the Welfare Reform Act 2007(a);
“action plan” has the meaning given by regulation 58;
“adoption leave” means a period of absence from work on ordinary or additional adoption
leave under section 75A or 75B of the Employment Rights Act 1996(b);
“aircraft worker” means a person who is, or has been, employed under a contract of service
either as a pilot, commander, navigator or other member of the crew of any aircraft, or in any
other capacity on board any aircraft where—
(a) the employment in that other capacity is for the purposes of the aircraft or its crew or of
any passengers or cargo or mail carried on that aircraft; and
(b) the contract is entered into in the United Kingdom with a view to its performance (in
whole or in part) while the aircraft is in flight,
but does not include a person who is in employment as a member of Her Majesty’s forces;
“Armed Forces and Reserve Forces Compensation Scheme” means the scheme established
under section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004(c);
“attendance allowance” means—
(a) an attendance allowance under section 64 of the Contributions and Benefits Act;
(b) an increase of disablement pension under section 104 or 105 of that Act;
(c) a payment under regulations made under section 111 of, and paragraph 7(2)(b) of
Schedule 8 to, that Act;
(d) an increase in allowance which is payable in respect of constant attendance under section
111 of, and paragraph 4 of Schedule 8 to, that Act;
(e) a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians)
Scheme 1983(d) or any analogous payment;
(f) any payment based on the need for attendance which is paid as an addition to a war
disablement pension;
“benefit Acts” means the Contributions and Benefits Act, Jobseekers Act and Part 1 of the
Act;
“benefit week” means a period of 7 days ending on such day as the Secretary of State may
direct but for the purposes of calculating any payment of income “benefit week” means the
period of 7 days ending on the day before the first day of the first benefit week following the
date of claim or the last day on which an employment and support allowance is paid if it is in
payment for less than a week;
“board and lodging” means—
(a) accommodation provided to a person or, if the person is a member of a family, to that
person or any other member of that person’s family, for a charge which is inclusive of the
provision of that accommodation and at least some cooked or prepared meals which both
are cooked or prepared (by a person other than the person to whom the accommodation is
provided or a member of that person’s family) and are consumed in that accommodation
or associated premises; or
(b) accommodation provided to a person in a hotel, guest house, lodging house or some
similar establishment,
except accommodation provided by a close relative of the person or any other member of the
person’s family, or other than on a commercial basis;

(a) 2007 c. 5.
(b) 1996 c. 18. Sections 75A and 75B were inserted by section 3 of the Employment Act 2002 (c. 22).
(c) 2004 c. 32.
(d) S.I. 1983/686. Article 14 was substituted by S.I. 2001/420, article 15 was amended by S.I. 2001/420 and article 16 was
amended by S.I. 1984/1675 and S.I. 2001/420.
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